In the legal profession, before an attorney (or a law firm) can engage and represent a potential new client, or represent an existing client in a new matter, the attorney (or law firm) must ensure that the new client representation does not, and will not, present a conflict of interest. In general, a conflict of interest exists when the representation of the new client (or the new matter for the existing client), results in a situation where an attorney's duty of loyalty to an existing client cannot be properly discharged due to the existing client having an interest adverse to the new client. For instance, a classic example is a divorce or child custody proceeding, in which it is generally impermissible for an attorney (or law firm) to represent both parties to the proceeding. In some situations, an actual conflict of interest can be waived by the client if the attorney (or law firm) seeks and obtains informed written consent from all affected clients. However, in other situations, a conflict of interest cannot be waived by a client.
A prohibited or undisclosed client representation involving a conflict of interest can subject an attorney to disciplinary hearings, the denial or disgorgement of legal fees, or in some cases (such as the failure to make mandatory disclosure), criminal proceedings. In some jurisdictions, a law firm typically cannot represent a client if the firm's interests conflict with those of another client, even if separate attorneys within the firm represent the adverse parties, unless the attorneys are segregated from the rest of the firm for the duration of the representation causing the conflict. Law firms often employ software-based systems in conjunction with their case management and accounting systems in order to meet their duties to monitor their conflicts of interest exposure, and to assist in obtaining waivers. However, a number of problems exist with the conventional software systems and techniques used for identifying the existence of potential conflicts, and clearing those potential conflicts.
A few of the many inefficiencies and problems that arise are described in connection with the illustration of a conventional workflow 10 for performing a conflict check, as illustrated in FIG. 1. First, after an attorney is contacted by a potential new client requesting representation 12, the attorney will communicate to a junior conflicts clearance analyst the information necessary to run an initial conflict check, which results in the generation of a conflicts check report 14. With many conventional software-based conflict clearance systems, there is but one interface to the system and that is generally targeted toward a conflicts analyst whose primary responsibility is interacting with the software to generate reports. Accordingly, there generally is no interface through which an attorney can interact with the conflict clearance system, and therefore the attorney is directly dependent upon the availability, skill and knowledge of a conflicts analyst.
Next, after receiving the necessary information from the attorney, the junior conflicts analyst uses the information provided by the attorney to expand the list of potential parties and to generate and process a search query 16. With many conventional conflicts checking and clearance systems, this operation is as much an art as it is a skill, and frequently depends upon the conflicts analyst's personal knowledge. For instance, if the conflicts analyst is personally familiar with an identified party, the conflicts analyst may have the necessary knowledge to expand the list to include the appropriate additional parties, for example, such as those with a direct affiliation to the identified party. In any case, with conventional conflict clearance systems, this step is both time consuming and has varied results.
Again referring to the conventional workflow 10 for processing a conflicts query, after generating and processing the search query, the junior conflicts analyst analyzes the initial search results to eliminate any obvious false positives, and in some cases, to refine and re-process the search query 18. Once satisfied with the search results, the junior conflicts analyst prepares a formal conflicts report, which may then be communicated to a senior analyst (or attorney) for review. The senior analyst (or attorney) may use his personal knowledge of informal business rules known to be in place and enforced by the firm to eliminate certain parties identified in the report, and/or modify or enhance the report 20, before providing the report to the attorney who initially requested the conflicts check 22. Here again, the process is highly dependent upon the personal knowledge of those persons participating in the process. This is problematic for a variety of reasons. First, if a key player in the conflicts checking and/or clearing process leaves the firm, so too does a wealth of knowledge used in processing conflicts checking and clearance requests. Additionally, because there may be several persons performing the same processing operations, the result of a particular search request will be highly dependent upon which personnel performed each processing step. As such, the results of multiple searches can vary greatly from request to request, resulting in conflicting reports that cause confusion and uncertainty. Moreover, as many of the processing steps are dependent upon personal knowledge of those doing the processing—such as the expanding of the parties included in the search query and the manual application of informal business rules—critical decisions are often not documented. If problems arise in the future with respect to a particular client representation, there may not be sufficient documentation to properly assess whether proper care was taken to avoid a conflict in the first place.